Posted by: johnocunningham | July 10, 2014

Ethics Gone Wild: TX Bar Says “Non-Lawyers” Can’t Be Chief Officers of “Non-Lawyer” Functions

When I read the Texas Bar Association’s Ethics Opinion no. 642, as issued by the Professional Ethics Committee of the State Bar of Texas, I was stunned. This ruling is bizarre and illogical even when viewed through the lens of its own rationale.

The opinion, for those who don’t know, stated that “under the Texas Disciplinary Rules of Professional Conduct, a Texas law firm may not use ‘officer’… in the job titles for non-lawyer employees of the firm.” Thus, firms in Texas cannot confer on employees the title of chief marketing officer, chief financial officer, chief operating officer, or chief information technology officer, despite the fact that these titles have been awarded to high-caliber professionals in law firms around the country and the world, along with significant compensation packages necessary to recruit the very best and brightest to manage law firm business functions (or perhaps I should say “non-lawyer” functions).

According to the Ethics Committee, “designating these employees  as ‘officers’ or ‘principals’ would be misleading and thus violate Rule 7.02(a).” That rule provides that “a lawyer shall not make or sponsor false or misleading communication about the qualifications or the services of any lawyer or firm.”

REALLY? So it is misleading to give a person an “officer” title for a non-lawyer function, such as the accounting, finance, marketing or technology management functions? Who exactly is being misled and how? The opinion does not answer this question, and apparently presumes that the reasoning is obvious.

Well, excuse me, but I practiced law for a long time, for more than a decade in Texas, and I was the chief legal officer of a publicly held company, and I don’t get it.

How is a client or member of the general public deceived when a law firm hires a top-notch technology pro and gives him or her the title of “Chief Tech Officer?”

In fact, Rule 1.1 of the model rules of ethics, as drafted by the American Bar Association, mandates that a lawyer must keep current with changes in practice, including “the benefits and risks associated with relevant technology.” How exactly does a sophisticated law firm do that without the help of one of those “non-lawyer” IT experts who command six-figure salaries and “chief technology officer” titles everywhere in the world (except in Texas).

Any law firm that keeps current on technology would understand that a “non-lawyer” expert is essential to manage and control the technology operations of the firm. That is relevant to the test articulated by the TX Ethics Committee – the officer title, to avoid being misleading, must be given to someone who “controls operations of the law firm.” Well, I am pretty certain that the IT officer should be in “control” of the technology function because it would be one hell of a mess if the lawyers were in charge.

In fact, there are literally thousands of technology products available to meet a firm’s needs for IT security, IT management, e-discovery, document management, billing, public database searching, big data analysis and other functions essential to delivering a cost-effective and high quality legal solution to client problems. Without a “chief technology officer” to choose the right solutions, and to manage and integrate all of those solutions, the firm would be operating in the Stone Age (as some firms do). Ditto for the difficult tasks associated with management of complex financial and accounting, human resources or marketing functions for a sophisticated firm.

I see NOTHING misleading about giving an officer title to a “non-lawyer” for management of a “non-lawyer” function, but I do see something inherently misleading and unjust about law firms offering to serve clients with anything less than current, state of the art business functions that make justice affordable and efficient.

I also find it misleading to allow law firms to do what many do every day – house lawyers together under one firm name (yes, it’s called a “brand”) and assert that they all adhere to certain standards of professionalism, quality, and service delivery that demonstrate care and concern for clients when in fact those law firms have no internal standards for service delivery, process management, process improvement, technology management, efficiency or any other business management function that would insure that clients get consistent, reliable, and cost-effective service at rates that don’t screw them. THAT would be misleading, and yet it is happening in many law firms, including law firms in Texas, every single day.

This ethics opinion simply makes no sense to me, as applied to titles conferred on essential professional specialists who help to insure that clients actually get an affordable, efficient and user-friendly result when they seek legal services. It is especially surprising to me because I have always found the Texas Bar to be serious about keeping up with the times, and concerned about affordable and efficient justice for clients in a profession that is pricing itself out of existence.

This opinion is not what I have come to expect from the Texas Bar. It sounds like it came from Ivory-tower oracles with no connection to the real world. These are the kind of people who think that “non-lawyer” is a word, that the caste of people without law degrees must not be allowed to control even a business function in firm operations, and that the world will go to hell if a “non-lawyer” untouchable were to get – GASP – a “title” that could possibly imply that lawyers are giving up a shred of “control.” Perhaps control is really what this all about – these lawyers can feel themselves losing control in a fast-changing world, and they can’t cope with it.

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Responses

  1. YES! The TX Bar ruling is an embarrassment to lawyers and everyone who works with them, including their clients. This blog post NAILS IT.

  2. Reblogged this on parisgetssocial and commented:
    They say everything is bigger in Texas, evidently this applies to mistakes as well. Let’s hope the Texas Bar Association comes to its collective senses soon, otherwise I fear the state will experience an exodus of qualified legal marketing professionals who will be on the look out for greener and more reasonable pastures.


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